Jones v. Commissioner of SSA

Filing 13

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Tair Jones : that decision be REVERSED and REMANDED under sentence four of 42 USC 405(g) and this case CLOSED. Objections to R&R due by 6/29/2012. Signed by Magistrate Judge Stephanie K. Bowman on 6/12/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TAIR JONES,

Case No. 1:11-cv-228

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Tair Jones filed this Social Security appeal in order to challenge the
Defendant’s finding that she is not disabled. See 42 U.S.C. § 405(g). Proceeding
through counsel, Plaintiff present four claims of error. As explained below, I conclude
that the finding of non-disability should be REVERSED, because it is based upon legal
error and is not supported by substantial evidence in the administrative record.
I. Summary of Administrative Record
Plaintiff may have received SSI benefits as a child.1 (See Tr. 44-45, discussion
between counsel and ALJ regarding prior SSI record; see also Tr. 402, Plaintiff’s report
to examiner that she had been on SSI, but was “cut off at 18.”). However, this case
concerns Plaintiff’s application to receive Supplemental Security Income (“SSI”) as an

1

There is no presum ption of continuing disability when a child attains the age of m ajority. Cutlip v. Sec’y of
Health & Human Servs., 25 F.3d 284, 286-287 n. 1 (6th Cir. 1994); compare, generally, Drummond v.
Commissioner of Social Security, 126 F.3d 837, 842 (6th Cir.1997) (holding that when the Com m issioner
has m ade a final decision concerning an adult claim ant's entitlem ent to benefits, the Com m issioner is
bound by this determ ination absent changed circum stances'). Instead, the Social Security Act requires
redeterm ination of SSI benefits within one year after an individual attains the age of 18, in which a
claim ant m ust generally subm it m edical or other evidence to show she is disabled under adult standards.
See Lewis v. Comm’r of Soc. Sec. 2011 W L 334850 *6 (N.D. Ohio, Jan. 31, 2011).

1

adult, based upon an alleged mental disability beginning on February 26, 2001.2 (Tr.
148-150).

Plaintiff’s primary complaint is her Bipolar and/or mood disorder.

After

Plaintiff’s October 26, 2007 application was denied initially and upon reconsideration,
Plaintiff requested a hearing de novo before an Administrative Law Judge (“ALJ”).
An evidentiary hearing was held on January 12, 2010 (Tr. 29-71),3 at which
Plaintiff appeared and testified, represented by counsel. ALJ Deborah Smith also heard
testimony from a vocational expert. On February 9, 2010, ALJ Smith issued a written
decision, concluding that Plaintiff was not disabled. (Tr. 10-24).
The record reflects that Plaintiff was nineteen years old at the time of her
application, and has never had any substantial gainful employment. Plaintiff grew up in
foster care, having been placed in that system at a young age due to her mother’s drug
abuse. The longest Plaintiff lived with any foster parent was a period of two and a half
years, but that she was removed from that home after a physical altercation with her
foster mother. (Tr. 41-43). Plaintiff testified that she repeatedly ran away from her
various foster placements until she was emancipated from the foster care system at the
age of 18. (Tr. 44).
She completed the equivalent of the tenth grade at a “behavioral program” known
as the Life Skills Program, but her performance was below grade level in
developmentally handicapped or severely behaviorally handicapped classes. (Tr. 271,
275). A report card dated June 2003, following completion of eighth grade, reflects

2

As the Adm inistrative Law Judge explained to Plaintiff at her hearing, SSI benefits m ay not be awarded
retroactively for m onths prior to October 2007, the m onth in which the application was filed. 20 C.F.R.
§415.335. (See also Tr. 31).

3

The evidentiary hearing was begun on Decem ber 15, 2009, but the ALJ continued the hearing because
Plaintiff’s counsel had subm itted a num ber of records shortly before the hearing. (Tr. 69-71).

2

promotion to ninth grade with C’s earned in math, language arts, science and social
studies from one teacher, and a “D-“ earned in art class from a second teacher. (Tr.
358). However, a report card from the first two quarters of ninth grade reflects failing
grades in all courses in both quarters. (Tr. 359). Plaintiff testified that after finishing the
eighth grade, she briefly attended the Lighthouse Charter School, but did not graduate.
(Tr. 35-36).
In the “Findings” representing the rationale of her decision, the ALJ determined
that Plaintiff has not engaged in substantial gainful activity, and suffers from the
following severe impairments: “mood disorder; borderline personality disorder; and
borderline intellectual functioning.” (Tr. 15).

However, considering all of those

impairments, the ALJ concluded that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Tr. 19). Instead, the ALJ
determined that Plaintiff retains the residual functional capacity (“RFC”) to perform a full
range of work at all exertional levels, subject only to the following nonexertional
limitations:
only simple, repetitive tasks; no more than superficial, minimal contact
with others, including co-workers; requires gradual changes in routine;
requires work in an isolated setting with infrequent contact with others; no
direct contact with the general public.
(Tr. 20). Although the ALJ determined that Plaintiff had no past relevant work and a
limited education, she found, based in part upon testimony from a vocational expert,
that “there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” (Tr. 23). Thus, the ALJ concluded that Plaintiff was not under a
disability and was not entitled to SSI benefits. (Tr. 24).

3

The Appeals Counsel denied Plaintiff’s Request for Review on February 24,
2011, and Plaintiff subsequently filed a timely appeal with this Court. In her appeal,
Plaintiff argues that the ALJ erred: (1) by improperly applying the "Treating Physician
Rule"; (2) by relying only on evidence which fit her opinions, rather than considering all
the evidence; (3) by failing to cite to portions of the record in support of her findings; and
(4) by improperly assessing Plaintiff's credibility.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability” within the
definition of the Social Security Act.

See 42 U.S.C. §1382c(a).

Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are
both “medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen v. City of New York, 476
U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal
quotation omitted). In conducting this review, the court should consider the record as a
whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
supports the ALJ’s denial of benefits, then that finding must be affirmed, even if

4

substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion.
. .. The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted). In considering an application for supplemental security income or
disability benefits, the Social Security Agency is guided by the following sequential
benefits analysis: at Step 1, the Commissioner asks if the claimant is still performing
substantial gainful activity; at Step 2, the Commissioner determines if one or more of the
claimant’s impairments are “severe;” at Step 3, the Commissioner analyzes whether the
claimant’s impairments, singly or in combination, meet or equal a Listing in the Listing of
Impairments; at Step 4, the Commissioner determines whether or not the claimant can
still perform his or her past relevant work; and finally, at Step 5, if it is established that
claimant can no longer perform his past relevant work, the burden of proof shifts to the
agency to determine whether a significant number of other jobs which the claimant can
perform exist in the national economy. See Combs v. Commissioner of Soc. Sec., 459
F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.
B. Plaintiff’s Assertions of Error
1. The Treating Physician Rule
Plaintiff first argues that the ALJ erred by improperly applying what is known as
the “Treating Physician Rule.” Applicable Social Security Regulations require the ALJ to
evaluate each medical opinion proffered, 20 C.F.R. § 404.1527(c), but generally give
more weight to the opinions of those who have personally examined the applicant than

5

the opinions of those who have not. Id. at § 404.1527(c)(1). A treating source’s opinion
will be given more weight because the medical professionals can “provide a detailed,
longitudinal picture of [the] medical impairment,” id. at § 404.1527(c)(2), and must be
given “controlling” weight if the opinion is “well supported by medically acceptable
clinical and laboratory diagnostic techniques,” and “is not inconsistent with the other
substantial evidence in [the] case record.” Id. In determining how much weight to give
to the opinions of a treating physician, the ALJ may consider the length and frequency
of treating relationship, as well as the nature and extent of the treating relationship. Id.
at § 404.1527(c)(2)(i)-(ii).
a. Summary of Medical Evidence from All Sources
Although Plaintiff’s mental health issues manifested themselves at a relatively
young age, medical records, including but not limited to those from childhood, are
sparse. Born in 1988, Plaintiff entered foster care at the age of 5 or 6. (Tr. 328).
Plaintiff appears to have been first evaluated for health services and diagnosed with
adjustment disorder at age 6. (Tr. 15, 354). In January 2000 at the age of eleven,
Plaintiff was briefly hospitalized for increasingly violent behavior towards others, and
diagnosed with reactive attachment disorder, adjustment disorder with disturbance of
conduct, oppositional defiant disorder, with a “rule out” of dysthymic disorder. (Tr. 16,
348-349).
When she reached the age of 18 in 2006, Plaintiff apparently had a break in
mental health treatment based upon a lack of health insurance and lack of information
concerning free care. (Tr. 43). Mental health records reflect only emergency room
visits, once for symptoms of a miscarriage, but primarily to obtain psychotropic
medications, from 2006 through 2008. (Tr. 367-396).

6

In January of 2008, shortly before her 20th birthday, the Plaintiff underwent a
consultative mental health examination by Richard E. Sexton, Ph.D, at the request of
the state Disability Determination Service. Dr. Sexton opined that Plaintiff had a full
scale IQ of 73, with achievement tests demonstrating scores that reflect fifth through
seventh grade equivalencies. (Tr. 274). Dr. Sexton diagnosed a mood disorder, not
otherwise specified, borderline intellectual functioning, and a personality disorder, not
otherwise specified.

(Tr. 275). Non-examining consultant, Katherine Lewis, Psy.D,

completed a psychiatric review technique form and rated Plaintiff’s degree of functional
limitations. (Tr. 293). Dr. Lewis concluded based upon Dr. Sexton’s report that Plaintiff
suffers from only mild limitations in her activities of daily living and in maintaining social
functioning, with no episodes at all of decompensation. However, Dr. Lewis found that
Plaintiff would be moderately limited in maintaining concentration, persistence or pace.
(Tr. 287). Alice Chambly, Psy.D., reviewed and affirmed Dr. Lewis’s assessment. (Tr.
304).
In March of 2008, Plaintiff sought emergency room care, was diagnosed with
bipolar disorder and assigned a GAF score of 45.4 (Tr. 17, 390-391). In May of 2008,
back on the medications she had been off for several years, she was assigned a GAF
score of 80 by psychiatric emergency room personnel (Tr. 17, 378-379). After running
out of medication June 2008, emergency room personnel assessed her GAF score at
55. (Tr. 17, 373).

4

The GAF Scale reports an individual’s overall level of functioning at a particular tim e, with higher scores
reflecting higher functioning. In general, “[t]he Com m issioner ‘has declined to endorse the [GAF] score for
“use in the Social Security and SSI disability program s,” and has indicated that [GAF] scores have no
“direct correlation to the severity requirem ents of the m ental disorders listings.’” DeBoard v. Comm’r of
Soc. Sec., 211 Fed. App’x 411 (6th Cir.2006)(additional quotations om itted).

7

Plaintiff began outpatient therapy sessions with a counselor at the Health
Resource Center of Cincinnati, Inc. in September 2009.5

On October 5, 2009, a

therapist diagnosed Plaintiff with bipolar disorder, with a “rule out” of other mood
disorder, as well as with a borderline personality disorder, and a GAF score of 53-55.
(Tr. 17, 326). In October 2009 Plaintiff reported that her mood swings had decreased
on medication in the past (Tr. 323), and that the same medication (Wellbutrin) was
currently helping (Tr. 17, 398). At a therapy appointment on November 9, 2009, she
reported that she went out with her sister and a couple of friends over the weekend and
had a good time.6 (Tr. 315).
On October 27, 2009, Plaintiff was prescribed Wellbutrin and Trazadone by a
physician whose name is illegible in the record.

(Tr. 337).

At a subsequent

appointment on November 9, 2009, another physician ordered topomax. (Tr. 338).
Plaintiff thereafter began treating with Bryan Cairns, M.D., who prescribed Wellbutrin,
topiramate (topomax), trazedone, and Abilify (arippiprazole) in November and
December 2009. (Tr. 329). By November 2009, Plaintiff’s diagnosis was changed from
bipolar to mood disorder, not otherwise specified, and borderline personality disorder;
her GAF score was assessed at 55 on November 9, 2009. (Tr .17, 322). The same
month she indicated her mood was better, she was calmer, and that she had not had
any angry outbursts. (Tr .17, 314, 316).

5

According to its website: “The Health Resource Center of Cincinnati, Inc. serves hom eless and at risk
individuals who are in need of psychiatric, or social services and whose needs for service are not being
m et by other agencies.” See http://www.hrcci.org/ (accessed on June 5, 2012).

6

The record is not clear as to whether the “friends” were friends of Plaintiff’s sister or Plaintiff’s own friends.
Plaintiff testified that she has only one fem ale friend with whom she regularly associates, other than the
m ale friend with whom she lives. (Tr. 53).

8

On December 14. 2009, when he had seen Plaintiff on only two occasions, Dr.
Cairns completed a mental impairment questionnaire concerning the Plaintiff (Tr. 36166). Dr. Cairns diagnosed Plaintiff with mood disorder, NOS, and with psychosis, NOS.
(Tr. 364). The mental RFC “check box” form concluded that Plaintiff had only mild
limitations in her activities of daily living, but opined that Plaintiff has moderate
limitations in maintaining social functioning, and in maintaining concentration,
persistence or pace. (Id.). Dr. Cairns marked “seriously limited, but not precluded” in
assessing many of Plaintiff’s mental abilities and aptitudes to perform even unskilled
work (Tr. 363). He marked “seriously limited, but not precluded” in assessing Plaintiff’s
abilities to understand and remember detailed instructions, to carry out detailed
instructions, or to set realistic goals or make plans independently as required to perform
semiskilled and skilled work. (Id.). Finally, Dr. Cairns opined that Plaintiff would be
“unable to meet competitive standards” in her ability to deal with the stress of any
semiskilled or skilled work. (Id.). Dr. Cairns indicated that his prognosis was “guarded”
due to his limited interaction with Plaintiff at the time of his evaluation, and noted that he
had recently prescribed new and additional psychiatric medications. Dr. Cairns wrote
“unable to determine” in response to a query as to whether Plaintiff was a malingerer,
but gave no explanation of that response. (Tr. 365). He assigned Plaintiff a GAF score
of 60. (Tr. 361).
Plaintiff’s primary health care system records reflect missed appointments at
Price Hill Clinic in September 2008, April and July 2009, with “no follow-up” noted in her
record after July 2009. (Tr. 400). Plaintiff reported that she had no regular primary care
“for years.” (Tr. 402).

9

b. Analysis of Consulting and Treating Physician Opinions
In assessing Plaintiff’s mental RFC, the ALJ gave “great weight” to the opinions
of non-examining consultant Dr. Lewis, while giving only “some weight” to the opinions
of examining and treating physician, Dr. Cairns. (Tr. 21). The ALJ’s basis for crediting
the opinions of Dr. Lewis over the opinions of Dr. Cairns reflects error.
20 C.F.R. §404.1502 includes as a treating source any psychologist or physician
“who has, or has had, an ongoing treatment relationship with you. Generally, we will
consider that you have an ongoing treatment relationship with an acceptable medical
source when the medical evidence establishes that you see, or have seen, the source
with a frequency consistent with accepted medical practice for the type of treatment
and/or evaluation required for your medical condition(s).” The regulation adds that a
medical source “who has treated or evaluated you only a few times or only after long
intervals (e.g., twice a year)” may still be considered to be a treating physician “if the
nature and frequency of the treatment or evaluation is typical for your condition(s).” Id.
However, the regulation excludes from the definition of a treating physician anyone
whose “relationship...is not based on your medical need for treatment or evaluation, but
solely on your need to obtain a report in support of your claim for disability.” Id.
Notwithstanding the “controlling” weight usually afforded to the opinions of
treating physicians, an ALJ may reject the opinions of a treating physician so long as he
or she provides “good reasons” for doing so. Thus, “if the treating physician’s opinion is
not supported by objective medical evidence, the ALJ is entitled to discredit the opinion
as long as he sets forth a reasoned basis for his rejection.” Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 477 (6th Cir. 2003); see also 20 C.F.R. § 404.1527(c)(2).
Additionally, regardless of medical opinions on the subject, determination of a claimant’s
10

residual functional capacity is ultimately “reserved to the Commissioner.” 20 C.F.R.
§404.1527(d)(2). Where conclusions regarding a claimant’s functional capacity are not
substantiated by objective evidence, the ALJ is not required to credit those conclusions.
Cutlip v. Sec’y of Health and Human Services, 25 F.3d 284, 287 (6th Cir. 1994).
In this case, Plaintiff argues that if the ALJ had given the appropriate “controlling”
weight to the opinions of Dr. Cairns, Plaintiff would be deemed to be disabled. In fact,
the vocational expert testified that someone who was limited in her RFC in the manner
described by Dr. Cairns may not be precluded from all employment “initially,” but that “it
would be difficult to, to maintain it [employment] over a long period of time.” (Tr. 64-65).
Despite stating that she was giving the opinions of Dr. Cairns “some weight,” the
ALJ rejected nearly all of Dr. Cairns’ assessment of Plaintiff’s mental limitations. The
ALJ reasoned, “[w]hen he completed the questionnaire, Dr. Cairns had only treated the
claimant two times so he is hardly a treating source.” (Tr. 21, emphasis added). The
ALJ further reasoned that Dr. Cairns had just prescribed new psychiatric medications,
as to which Dr. Cairns explained that he was “awaiting the claimant’s response.” The
ALJ concluded: “Arguably, the claimant’s condition would improve with treatment as the
record shows it has in the past.” (Id.).
The ALJ’s stated reasons do not constitute “good reasons” for rejecting Dr.
Cairns’ opinions. First, the ALJ mistakenly dismissed Dr. Cairns as “hardly a treating
source.” The record reflects that although Plaintiff had been treated by Dr. Cairns on
only two occasions as of December 2009, she had been prescribed psychiatric
medications by other physicians at the same clinic on two prior occasions, and had
been receiving regularly scheduled therapy for approximately eight sessions with a

11

counselor at that center for several months.7 (Tr. 311-340). Dr. Cairns, as the
psychiatrist supervising Plaintiff’s medications, was privy to all of those records and
presumably reviewed them in the course of his treatment of Plaintiff.
Defendant’s contention that “the Sixth Circuit has declined to find that an ongoing
treatment relationship exists after just two or three examinations,” (Doc. 11 at 10),
sweeps too broadly. The unpublished cases cited by Defendant are distinguishable. In
Cooper v. Astrue, 2011 WL 1118514 (S.D. Ohio, R&R filed Jan 25, 2011), for example,
the physician saw plaintiff once in 2006, prescribed steroid injections for back pain at a
second visit in 2007, and opined that the plaintiff was permanently disabled. However,
he reported the following month that Plaintiff had obtained “really good relief” from the
injections, and records reflected that plaintiff experienced relief for the next half-year.
Id., at *10-11.

The magistrate judge noted that “Plaintiff did not have the type of

ongoing treatment relationship...that the treating physician doctrine contemplates” at the
time the physician rendered his opinion, because the two visits (at the time of his
opinion) did not give him the “long term overview” that was necessary. Id. In Boucher
v. Apfel, 238 F.3d 319, 2000 WL 1769520 (6th Cir., Nov. 15, 2000), the ALJ rejected as
a treating source a physician whom plaintiff had visited three times in three years,
where the visits were solely for the purpose of evaluating his claim for disability benefits

7

A psychotherapist is not considered to be an “acceptable m edical source” like a treating physician or
doctoral level psychologist; therefore, his or her opinions are not entitled to “controlling weight.” See 20
C.F.R. §§404.1527(a)(2); 404.1527(c), 416.927(a)(2), 416.927(d). Nevertheless, SSR 06-03p, 2006 W L
2329939, provides that opinions from m edical sources who are not “acceptable” m edical sources should
still be considered under the factors set forth in 20 C.F.R. §404.1527(c)(2), including “how long the source
has known the individual, how consistent the opinion is with other evidence, and how well the source
explains the opinion.” See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6 th Cir. 2007)(citations
om itted).

12

at the request of an agency. There was no dispute that the consulting physician in
Boucher had no “ongoing treatment relationship” at the time he rendered his opinions.
The number of times a plaintiff has been examined by her physician, prior to the
date that physician renders his or her opinion, must be considered in deciding whether
the physician has an ongoing treatment relationship, but it is not the sole determining
factor under the applicable regulations. Dr. Cairns saw Plaintiff twice within a thirty-day
period (Tr. 312-13, 322) and changed her psychiatric medications in the course of what
was clearly an ongoing treatment relationship. (Tr. 361). Since most psychiatrists
oversee medications as opposed to providing the type of weekly or biweekly
psychotherapy provided by a therapist or psychologist, a period of months between
such appointments is not uncommon. A prescribing psychiatrist is presumed to intend
to continue a treatment relationship to see how the prescribed drugs affect the patient,
an intention reflected in Dr. Cairns’ notes. Because the records of Dr. Cairns reflect
visits with “a frequency consistent with accepted medical practice for the type of
treatment and/or evaluation required for your medical condition(s),” 20 C.F.R.
§404.1502, the ALJ should not have implied that he was not a treating physician. See
also generally, Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir.1989) (holding that
ALJ erred by discounting one-time psychiatric examination based upon the relative
“imprecision

of

the

psychiatric

methodology or

the

absence

of

substantial

documentation.” (internal quotation marks and additional citation omitted)).
The additional basis for rejecting Dr. Cairns’ opinions - that “[a]rguably, the
claimant’s condition would improve with treatment as the record shows it has in the
past,” is also troubling. (Tr. 21). Plaintiff’s records do not reflect any substantial mental
health treatment for most of her teenage years, and reflect but a few sporadic visits to a

13

psychiatric emergency room to obtain medications from 2006-2008 before she reentered treatment soon after reaching adulthood. For the ALJ to conclude that Plaintiff
was likely to “improve with treatment” upon Dr. Cairns’ newly prescribed drug regimen,
based upon limited childhood records and a smattering of emergency room
assessments from prior years, required an unwarranted degree of speculation and
medical judgment - not the least because no records reflect that Plaintiff has ever
demonstrated the ability to maintain a job of any kind.
To be fair, the ALJ also rejected Dr. Cairns’ opinions based upon Dr. Cairns’ own
inconclusiveness concerning whether Plaintiff might improve over time, and whether
she was a malingerer. The ALJ also noted that Dr. Cairns’ assessment of Plaintiff’s
overall functioning reflected only a “moderate” range of limitations, and that he
(apparently inaccurately) noted episodes of decompensation without specifying any
such episodes. (Tr. 21). None of these reasons reflects clear error, but on balance
they do not constitute substantial evidence for rejecting Dr. Cairns’ opinions given the
invalidity of other articulated reasons.
In contrast to the opinions of Dr. Cairns, the ALJ gave the February 12, 2008
opinion of non-examining records reviewer, Dr. Lewis, “great weight.” (Tr. 21). The
greater weight afforded to Dr. Lewis’s assessment reflects additional error. Dr. Lewis
relied primarily, if not exclusively, on the one-time examination of Dr. Sexton in January,
2008. (Tr. 270).
In general, the opinions of a consulting physician who has actually examined the
plaintiff will be given more weight than that of a non-examining consultant, with treating
physicians alone to be given controlling weight. See 20 C.F.R. §404.1527(c)(1) and
(c)(2). Of course, application of the regulatory scheme permits individual variations in

14

this general scheme. Thus, in Blakley v. Commissioner of Social Security, 581 F.3d
399 (6th Cir. 2009), the Sixth Circuit reiterated the principle that “[i]n appropriate
circumstances, opinions from State agency medical...consultants...may be entitled to
greater weight than the opinions of treating or examining sources.” (Blakley, 581 F.3d
at 409, quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180, at *3 (July 2, 1996)).
In Blakley, the court reversed on grounds that the state non-examining sources
did not have the opportunity to review “much of the over 300 pages of medical
treatment...by Blakley’s treating sources,” and the ALJ failed to indicate that he had “at
least considered [that] fact before giving greater weight” to the consulting physician’s
opinions. Blakley, 581 F.3d at 409 (quoting Fisk v. Astrue, 253 Fed.Appx. 580, 585 (6th
Cir. 2007)). Under Blakley, then, an ALJ may choose to credit the opinion of even a
non-examining consultant who has failed to review a complete record, but she should
articulate her reasons for doing so. If she fails to provide sufficient reasons, her opinion
still may be affirmed if substantial evidence supports the opinion and any error is
deemed to be harmless or de minimis. On the facts presented, it was error for the ALJ
to give greater weight to the assessment of Dr. Lewis than to the assessment of Dr.
Cairns, because the ALJ failed to provide sufficient reasons, and because Dr. Lewis did
not review a complete record. The error was not harmless, and therefore requires
remand.
Both Dr. Lewis and Dr. Sexton are clinical psychologists.

While both

psychiatrists and psychologists are qualified medical sources, only treating psychiatrists
(like Dr. Cairns) prescribe medications. Dr. Lewis’s lack of expertise in assessing the
use and efficacy of Plaintiff’s psychiatric medications, as a psychologist conducting a
records review of a second psychologist, should have been taken into consideration.

15

After all, the ALJ’s non-disability finding was expressly based in part on the perceived
likelihood that recently prescribed medications would “improve” Plaintiff’s condition to
the point that she could maintain employment.
Dr. Cairns, as a treating psychiatrist overseeing those medications, is presumed
to have greater knowledge than the non-examining consulting psychologist. Under
Blakley, it is noteworthy that Dr. Cairns rendered his opinions nearly two years after Dr.
Lewis completed her assessment, (Tr. 360), a fact that the ALJ failed to reference.8
Because the ALJ implied that Dr. Cairns was not a treating source, and because the
ALJ improperly weighed the opinions of Dr. Cairns and Dr. Lewis, this case must be
remanded.
2. The ALJ’s Use of the Record
Plaintiff’s second and third claims of error are combined for the Court’s
convenience, as both concern the ALJ’s use of the record. In her second claim, Plaintiff
contends that the ALJ erred by selectively choosing portions of the evidence that fit her
opinions rather than considering the record as a whole. In her third claim, Plaintiff
charges that the ALJ failed to provide any support for some of her conclusions.
As an example of cherry-picking portions of a few exhibits, Plaintiff points to the
ALJ’s reference to an exhibit that assessed Plaintiff at age 6, and again at age 11. The
ALJ suggested that Plaintiff’s “emotional and behavioral problems were not seriously
interfering with her functioning” at that time. (Tr. 15). The ALJ’s statement does indeed
present a rosier picture of Plaintiff’s mental health impairment than may be warranted
given the length of intervening years (and totality of the exhibit in question) but standing
8

Presum ably Dr. Cairns prescribed new m edications in part based upon his observations of new
sym ptom s not found by Dr. Lewis, including psychosis (hearing voices at tim es, and occasional hom icidal
and suicidal ideation). (Tr. 312).

16

alone, it is not clear that the reference to childhood records would warrant remand.
Even though the ALJ made other errors that require remand for re-evaluation of
Plaintiff’s mental RFC, the ALJ later provided some discussion of most of the relevant
mental health records, as well as of relevant Social Security statutes and rulings.
An ALJ is not required to discuss every medical record in detail, see, e.g., Walker
v. Sec’y of Health & Human Servs., 884 F. 2d 241, 245 (6th Cir. 1989) but should make
sure to consider the record as a whole. See Hephner v. Mathews, 574 F.2d 359, 362
(6th Cir. 1978) (“The determination of whether there is substantial evidence to support
the findings of the Secretary depends on the record as a whole”). See also Hurst v.
Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985) (citing Allen v.
Califano, 613 F.2d 139, 145 (6th Cir. 1980)) (“failure to consider the record as a whole
undermines the Secretary’s conclusion”).

Despite the existence of other errors in

weighing the opinions of Drs. Cairns and Lewis, Plaintiff points to no particular mental
health evidence that was wholly ignored by the ALJ. Finally, there is no question that
the ALJ supported her findings concerning Plaintiff’s physical RFC with references to
the record as a whole.
3. The ALJ Improperly Assessed Plaintiff’s Credibility
As her last assignment of error, Plaintiff argues that the ALJ improperly evaluated
her credibility.

An ALJ’s credibility assessment must be supported by substantial

evidence, but “an ALJ’s findings based on the credibility of the applicant are to be
accorded great weight and deference, particularly since an ALJ is charged with the duty
of observing a witness’s demeanor and credibility.” Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 531 (6th Cir. 1997).

Further, a credibility determination cannot be

disturbed “absent a compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir.

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2001). Thus, it is proper for an ALJ to discount the claimant’s testimony where there
are contradictions among the medical records, her testimony, and other evidence.
Warner v. Comm’r of Soc. Sec., 375 F.3d at 387, 392 (6th Cir. 2004).
On remand, the ALJ should re-evaluate the Plaintiff’s credibility.

The ALJ

concluded that “[t]he claimant’s functioning, as demonstrated by the medical evidence
of record, is significantly better than she has alleged at the hearing. Her allegations of
disability are not supported by substantial objective evidence, clinical findings, or
treatment history. The undersigned finds such allegations to be disproportionate and
less-than-credible.” (Tr. 23). The ALJ offered three reasons for negatively assessing
Plaintiff’s credibility: 1) “significant gaps in claimant’s mental health treatment” (Tr. 17);
2) Plaintiff’s limited work history; and 3) Plaintiff’s ability “to follow rules when she
chooses.” (Tr. 23). All three reasons reflect unwarranted assumptions, in light of the
evidence in the record as a whole.
First, the ALJ found that Plaintiff’s treatment history “is not consistent with a
finding of disability,” because it reflects “conservative care and treatment,” and “long
periods when she was out of treatment.”

(Tr. 23).

For example, the ALJ found

suspicious the fact that “after being off of her medication for four years, the claimant
sought to re-establish treatment around March 2008, following her initial denial of
disability benefits.” (Id.). In referencing Plaintiff’s history of treatment, however, the ALJ
failed to note that most gaps and “conservative” treatment occurred when Plaintiff was a
minor child enrolled in foster care.

By contrast, Plaintiff consistently sought

psychotropic medications through emergency room care soon after turning 18.
As an adult, the record reflects that Plaintiff failed to attend some appointments
at the Lower Price Hill clinic for treatment by a primary care physician, which the ALJ

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suggested “[m]otivational” and “compliance issues.” (Tr. 17). The ALJ also noted that
Plaintiff “indicated that her medications were helping” but found fault with Plaintiff for
twice running out of her medications without obtaining a timely refill. (Id.).

Again,

however, the record also reflects that Plaintiff has borderline intellectual functioning, and
had experienced several changes in residence. She has a severe mental illness, no
health insurance or financial resources, and very limited ability to obtain consistent
treatment since reaching the age of 18 in 2006. Her attorney represented to the ALJ
that once counsel advised Plaintiff of the availability of low-cost and free mental health
care, Plaintiff placed her name on waiting lists in order to obtain adequate treatment.
(See Tr. 330, 402).
Sixth Circuit case law confirms that it is improper to assume that a patient’s
failure to receive mental health treatment evidences a tranquil mental state, particularly
since the very failure to seek treatment may be a symptom of the disorder. See, e.g.,
White v. Comm’r of Soc. Sec., 572 F.3d 272, 283-284 (6th Cir. 2009)(citing Pate-Fires
v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009)).

In addition, the failure to comply with

treatment cannot be the determining factor in judging the credibility of a mentally ill
claimant. See Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989). That is not
to say that a failure to seek treatment may never be considered. See Teel v. Comm’r of
Soc. Sec., 2011 WL 6217424 (S.D. Ohio Dec. 14, 2011)(J., Beckwith, noting lack of
mental health treatment can be appropriate factor). However, SSR 96-7p generally
requires the adjudicator to consider any reasons offered for a failure to seek treatment,
including mental illness or a lack of insurance. See Green v. Comm’r of Social Sec.,
2008 WL 4449854 at *9 (E.D. Mich., Oct. 2, 2008); Blakeman v. Astrue, 509 F.3d 878,
888 (8th Cir. 2007).

While the relative lack of consistent treatment may negatively

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impact credibility, the ALJ’s analysis should have reflected consideration of the reasons
for the lack of treatment before drawing such a strong negative inference on the facts
presented.
The ALJ additionally faulted Plaintiff for her “very limited work history, which
raises some questions about whether the current unemployment is truly the result of a
medical problem.” (Tr. 23). However, while Plaintiff has never engaged in substantial
gainful activity, that fact appears to lend greater support to the premise that Plaintiff is
unable to work, than to the premise that she can work, but chooses not to. The record
reflects that Plaintiff’s only employment was during academic recesses in the summers
of 2003 and 2004, at times when she was 15 and 16 years of age. She explained that
her limited employment was provided through a structured “CCY” program, and that her
foster mother “signed us up for it and everything.” (Tr. 50). There is no evidence that
Plaintiff has ever found or maintained a job without assistance. (Tr. 49-50, 153-56). In
fact, Plaintiff testified that she has difficulty completing any job application due to
deficient reading and writing skills. (Tr. 50-51). Thus, it was unreasonable for the ALJ
to unequivocally conclude that Plaintiff’s lack of work history reflects negatively on her
credibility.

As with Plaintiff’s limited mental health treatment, this Court is not

determining that Plaintiff’s lack of work history is the result of her impairment, but only
that the ALJ’s categorical opposite conclusion was unreasonable absent - at a minimum
- better evaluation of the medical evidence concerning her work-related limitations.
A third reason cited by the ALJ for her credibility assessment was Plaintiff’s
ability “to follow rules when she chooses.” (Tr. 23). The record cited by the ALJ for this
conclusion was a childhood record that the ALJ described as indicating “that she
followed rules in her foster home.” The particular referenced record does not support

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the proposition for which it is cited, nor does the record as a whole suggest that Plaintiff
was able to follow rules while in foster care.

To the contrary, the limited records

available suggest that Plinatiff was hospitalized as a child for assaultive behavior, and
that throughout most of her time in foster care, she ran away and was repeatedly
removed and placed in new foster homes until reaching the age of 18.
While an ALJ is free to resolve issues of credibility as to lay testimony, or to
choose between properly submitted medical opinions, she is not permitted to make her
own evaluations of the medical findings. As recognized by this Court, “[t]he ALJ must
not substitute his own judgment for a doctor’s conclusion without relying on other
medical evidence or authority in the record.” Mason v. Comm’r of Soc. Sec. No. 1:07cv-51, 2008 WL 1733181, at * 13 (S.D. Ohio April 14, 2008) (Beckwith, J; Hogan, M.J,,
citing Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963)).
Evidence of a plaintiff’s activities of daily living may be sufficient, in some cases,
to support a negative credibility assessment. Here, Plaintiff is able to do housework,
make food for herself, shop for herself, and does not need assistance with personal
care. (Tr. 59).

She has never had a driver’s license (Tr. 35), but can use public

transportation. (Id.). She lives with a friend who helps support her, but does not always
get along with him. She testified that she currently receives food stamps and has a
medical card, but also testified that she engages in sex “with people to get money.” (Tr.
38, 46, 53-54). In light of the three errors discussed above, the ALJ’s assessment of
Plaintiff’s credibility in this case cannot rest solely upon the Plaintiff’s activities. Instead,
the ALJ’s conclusion that “Plaintiff’s allegations of disability are not supported by
substantial objective evidence, clinical findings, or treatment history,” (Tr. 23) requires
further review on remand.

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III. Conclusion and Recommendation
A sentence four remand under 42 U.S.C. § 405(g) provides the required relief in
cases where there is insufficient evidence in the record to support the Commissioner’s
conclusions and further fact-finding is necessary. See Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted). In a sentence four
remand, the Court makes a final judgment on the Commissioner’s decision and “may
order the Secretary to consider additional evidence on remand to remedy a defect in the
original proceedings, a defect which caused the Secretary’s misapplication of the
regulations in the first place.” Faucher, 17 F.3d at 175.
For the reasons explained herein, IT IS RECOMMENDED THAT:
1. The decision of the Commissioner to deny Plaintiff SSI benefits be
REVERSED and this matter be REMANDED under sentence four of 42 U.S.C. §
405(g);
2. Consistent with this R&R, the ALJ should reevaluate: a) the weight to be given
to each medical opinion; and b) Plaintiff’s credibility.
3. As no further matters remain pending for the Court’s review, this case be
CLOSED.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TAIR JONES,

Case No. 1:11-cv-228

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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